United States v. Adam John Nicodemus

986 F.2d 503 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of AMERICA, Appellee, v. Adam John NICODEMUS, Appellant. No. 92-2998. United States Court of Appeals, Eighth Circuit. Submitted: January 12, 1993. Filed: February 1, 1993. Before WOLLMAN, BEAM, Circuit Judges, and NANGLE,* Senior District Judge. PER CURIAM. — 1 — Adam John Nicodemus appeals the ninety-seven-month sentence imposed on him by the district court1 following his guilty plea to kidnapping, in violation of 18 U.S.C. § 1201(a)(1). He argues the district court erred in refusing to grant him a downward departure based on mitigating factors. He argues that his act of kidnapping was aberrant behavior and that his age and mental condition created the potential for victimization while imprisoned. We affirm. — 2 — The district court found that, although the kidnapping incident involved behavior by Nicodemus that was more dangerous than his earlier behavior, it was not so unpredictable or out of character that it warranted a departure. The court also found that the Bureau of Prisons had the ability to provide Nicodemus with any necessary protection from other inmates, and declined to grant a departure on the basis of potential victimization. — 3 — If a defendant's offense constitutes a single act of aberrant behavior, a district court may depart downward from the applicable Guidelines range because that situation was not taken into consideration by the Sentencing Commission when formulating the Guidelines. U.S.S.G. Ch. 1, Pt. A4(d), p.s.; United States v. Garlich, 951 F.2d 161, 164 (8th Cir. 1991). Also, a defendant's potential for victimization in prison may be a valid basis for departure. United States v. Long, 977 F.2d 1264, 1277-78 (8th Cir. 1992); United States v. Lara, 905 F.2d 599, 602-03 (2d Cir. 1990). We conclude, however, that the district court's refusal to depart was a discretionary decision which we may not review. See United States v. Johnston, 973 F.2d 611, 614 (8th Cir. 1992) (district court's discretionary decision not to depart downward under U.S.S.G. § 5K2.0 for mitigating circumstances was not reviewable); United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir. 1992) (declining review of defendant's sentence where district court concluded facts of case did not warrant downward departure). — 4 — Accordingly, we affirm. Footnotes [-s] * The Honorable John F. Nangle, Senior United States District Judge for the Eastern District of Missouri, sitting by designation [1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas